On Marriage: Women Have the Right Over Themselves
Prof Buya Hamka, in his book entitled Buya Hamka Berbicara tentang Perempuan, writes that in determining who will be her spouse, a woman has the right to herself.
In a hadith it is stated:
From Ibn Abbas RA, that the Prophet SAW said: “A previously married woman has more right to herself than her guardian, and a virgin must be asked for her consent, and her consent is her silence.” (Narrated by Muslim)
According to Buya Hamka, this hadith very clearly explains that a woman has the right to herself. A widow even has more right to herself than her own guardian. Of course, as Muslim women they will choose a suitable husband, one who is compatible and equally takes shelter under the banner of Islam. If these conditions are not fulfilled, for example if she chooses an adulterer as a spouse even though she comes from a good family, or she chooses a disbeliever even though she comes from a Muslim family, the guardian and others may prevent it. This is not to seize her freedom but rather to limit a freedom that is being misused.
In the hadith above it is mentioned that a virgin girl, if she remains silent when asked, is a sign that she has given her permission. The Prophet said this because in that era a virgin girl was still shy. It was considered shameful for her to say “I like him”.
A hadith narrated by Abu Dawud, Ad-Daraquthni, Ibn Majah, and Imam Ahmad from Ibn Abbas explains that a girl complained about her situation to the Messenger of Allah SAW. She had been married off by her father even though she did not like it. The Prophet then left it to the girl as to what she wished. If she asked for the marriage to be annulled, he would annul it.
However, the woman then answered, let it be continued, there is no need to annul it. I made this complaint, O Messenger of Allah, to explain that my father’s right is not so broad that he may force me.
Khansa binti Khidam, a widow who was forcibly married off by her father, also complained to the Prophet. Her marriage was then annulled by the Prophet.
An orphaned virgin girl, whose father has passed away, if she is to be married off, permission must also be sought from herself.
The Messenger of Allah SAW said: “The orphan girl is asked for her permission regarding herself.” (Narrated by Ahmad).
There are some differences among the fiqh scholars on this minor matter, but in principle there is not much disagreement. In fact, Imam Abu Hanifah held the opinion that a widow has more right to herself, and this is further strengthened by the hadith:
“The guardian has no authority over a previously married woman or an orphan girl. If she is to be married off, it must be with her permission. And her silence is her consent.” (Narrated by Abu Dawud).
According to Abu Hanifah, being married off by a guardian is not an absolute requirement. As long as there are sufficient witnesses, it is known to many people, and it is not done in secret. Thus, there is nothing wrong with a widow marrying herself to a man she likes. However, it should be noted that Abu Hanifah did not intend to abolish the guardian altogether.
In the books of fiqh, he acknowledges the importance of the guardian and who may serve as guardian. He says that even distant relatives (dzawil arham) may serve as guardian. If a guardian does not exist or is in a situation where he cannot carry out his duties, the authority of the guardian passes to the sultan. For the sultan or ruler is the guardian for anyone who has no guardian.